1. a Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970; or
2. an Environmental Auditor appointed under section 53S of the Environment Protection Act 1970 must make a Statement in accordance with section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit.

1. On 22 August 2006, the responsible authority made an extensive further information request from the applicant prior to consideration of the application, including the following in respect of the Certificate of Environmental Audit:

The subject site is identified as land that is potentially contaminated. Before issuing a planning permit for use or development of land for a sensitive use, council must be satisfied that the land is suitable for the intended future use. In order for council to be satisfied, a Certificate or Statement of Environment Audit is required to be provided to council. The preparation of a Certificate or Statement of Environment Audit is often a time-consuming and costly exercise resulting in applicants for planning permits seeking to delay this requirement to a future date. Delaying the requirement for a Certificate or Statement of Environment Audit is often not possible, however in order for council to consider whether it is possible to delay the requirement for a Certificate or Statement of Environment Audit the following will be required to be submitted for council's consideration:

1. a comprehensive Environmental Site Assessment from a suitably qualified environmental expert, together with details of this person's professional indemnity insurance policy and the currency of this insurance policy. The Environmental Site Assessment must clearly state that the land is suitable for the intended future use;
2. an undertaking by the permit applicant to pay council's costs of obtaining an independent review of the Environmental Site Assessment from another suitably qualified environmental expert of council's choice.

In seeking to delay the requirement to provide a Certificate or Statement of Environment Audit you should be aware that it is council who must ultimately be satisfied that the land is suitable for its intended use prior to the issue of a planning permit and that despite the completion of an Environmental Site Assessment and an independent review of this assessment, council may, at its discretion, ultimately determine that a Certificate or Statement of Environment Audit is required prior to the determination of your planning permit application. You should also be aware that the provision of a Environmental Site Assessment will not obviate the need to provide a Certificate or Statement of Environment Audit prior to the commencement of development of the land or, in the circumstances where no development is to occur, prior to the commencement of the use of the land.

1. On 17 November 2006, Gattini & Partners protested to Moreland City Council:
   1. Please find attached a copy of our letter of appointment of the Environmental Auditor for the subject site and correspondence from the Auditor notifying the EPA of his appointment.
   2. Under protest - we hereby undertake to provide Council with

a Certificate or Statement of Environmental Audit prior to Council making a decision on the planning application.

Please note that we reserve our clients (sic) right to pursue a Declaration pursuant to Section 149a of the Planning & Environment Act 1987 with regard to this matter.

I trust the information provided in this submission is sufficient for you to be able to further consider the permit application and commence a public notification process under the relevant provisions of the Planning & Environment Act 1987.

Environment Site Assessment v Certificate or Statement of Environmental Audit

1. What is the difference between the above three documents?
   1. A Certificate of Environmental Audit indicates the auditor is of the opinion that the site is suitable for any beneficial use and that there is no restriction on use of the site due to its environmental condition;
   2. A Statement of Environmental Audit indicates that the auditor is of the opinion that there is, or may be, some restriction on use of the site due to its environmental condition. A Statement may include conditions that require remediation works to be undertaken or places ongoing requirements on the site. A Statement might also indicate that a site is not suitable for any use, in which case the EPA will usually issue a Notice to require clean up or management of that site.

3. An environmental site Assessment involves an Auditor looking at previous reports, checking the history of the site, doing test bores and soil samplings. The Auditor would express an opinion that if remedial works are done, the site would be suitable for residential use. But this is not a process that would satisfy the statutory obligation. * (a) Phase 1 of an environmental site assessment involves a walk over the land, review of previous uses, and a review of previous environmental reports. This was all that was done for imposing the Environmental Audit Overlay. * (b) Phase 2 of an Environmental Assessment is more intrusive. It involves test bores and a number of soil samples.

1. On 11 January 2001 the subject land was rezoned from IN3 (Industrial 3) to Mixed Use Zone[3]. It is also overlayed by an Environmental Audit Overlay and a Design and Development Overlay.
2. An Environmental Site History Survey by Alpha Environmental Pty Ltd dated January 2001 appears to have accompanied the rezoning. It concludes that the usual Audit Statement and Certificate be imposed as a planning permit condition and that it is possible not all contamination will require removal, depending on the type of and concentration of contamination and concrete slab thickness.
3. Pursuant to cl.15.06-2 of the Moreland Planning Scheme, and at the time of the rezoning from IN3 to MUZ, Minister's Direction No 1 under the Planning and Environment Act 1987 applied and continues to apply to the preparation of a planning scheme or amendment which would have the effect of allowing land used or known to have been used for industry, mining or the storage of chemicals, gas, wastes or liquid fuel to be used for agriculture, public open space or a residential use, a child care centre, a pre-school centre or a primary school.
4. In considering applications for use of land used or known to have been used for industry, mining or the storage of chemicals, gas, wastes or liquid fuel, responsible authorities should require applicants to provide adequate information on the potential for contamination to have adverse effects on the future land use.[4]
5. Planning and responsible authorities should have regard to the following documents when making decisions regarding contaminated land:
   • Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites (ANZECC/MHNRC 1992);
   • Planning Measures for Environmental Protection: A Practical Guide for Local Government (EPA 1994) (now superseded by DSE Practice Note 2005);
   • Relevant Information Bulletins published by the Environment Protection Authority.
6. Clause 45.03 of the Moreland Planning Scheme, Environmental Audit Overlay (EAO) still only requires a Statement or Certificate of Environmental Audit prior to commencement of use or construction[5]:

Before a sensitive use (residential use, child care centre, pre-school centre or primary school) commences or before the construction or carrying out of buildings and works in association with a sensitive use commences, either:

• A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or
• An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.

1. The DSE Practice Note 2005 states under the heading 'When is an environmental audit necessary for a planning permit application?'

If an environmental audit is required because an EAO is applied over the land, a Certificate or Statement of Environmental Audit must be issued before the sensitive use or buildings and works associated with the sensitive use can commence. If an EAO has been applied, the planning authority has already made an assessment that the land is potentially contaminated and that it is unlikely to be suitable for a sensitive use without further assessment and remediation works or management.

There may be other circumstances where the land is known to be contaminated and it would be appropriate for the level of contamination to be fully assessed as part of the application process.

Generally an environmental audit should be provided as early as possible in the planning process. This may not always be possible or reasonable and requiring an environmental audit as a condition of permit may be acceptable if the responsible authority is satisfied that the level of contamination will not prevent the use of the site.

1. The burning question is whether this case is an example of an "other circumstance" justifying effort and expense of an Environment site Assessment as part of the application process.

1. Council justifies its request for a Statement or Certificate of Environmental Audit as follows:

The EAO requires that a certificate or statement of environmental audit is required before a residential use commences or building and works for that use commences. That may be a requirement imposed as a permit condition. However, the responsible authority requires further information about the nature and extent of contamination affecting the subject land to enable it to properly assess the permit application to

1. change the use of the subject land to a residential use, and
2. to assess the suitability of the development and its proposed design.

It may be that the nature and extent of contamination affects the responsible authority's decision

1. on whether a change in use should be permitted (and if it should, under what conditions),
2. what stage an environmental audit should be required and
3. suitability of the development and proposed design to respond to the potential impact of contamination on the use and development of the subject land.

1. It also justifies it, explaining that when the 2003 permit was issued, the DSE 2005 Practice Note was not in existence. But this is not enough in itself. There needs to be an "other circumstance" feared by the responsible authority to justify this requirement.

1. In my opinion it is illogical, inconsistent and inaccurate to require, in this case, such a level of expense and effort as a comprehensive Environmental Site Assessment plus an undertaking to pay council's costs of obtaining an independent third party review of this assessment, prior to it even making a decision on this permit application.
2. It is illogical because this land had been to a Panel prior to its rezoning in 2001 from IN3 to MU2. Therefore, at that time, responsible and planning authorities had already decided that residential use was possible and reasonable despite its industrial past. The responsible authority does not have to reinvent the wheel. It does not need that level of information to make that "change to residential use" decision again because an Mixed Use 2 zone incorporates residential use as a Section 1 no permit required use, whereas Industrial Use is Section 2 permit required!
3. It is inconsistent because planning permission for residential development was already given in 2003 by this same responsible authority, content that a Statement or Certificate of Environmental Audit was only required prior to commencement of construction (not the obtaining of permission in the first place).
4. It is equally inconsistent because the parent clause 45.03 of the Moreland Planning Scheme only requires a Statement or Certificate of Environmental Audit prior to commencement of use or construction/works and not as early as prior to planning permission.

1. It is illogical because the responsible authority is elevating DSE Practice Note 2005 to higher than the status of the clause 45.03 planning control that this Practice Note is addressing.
2. It is also inaccurate because under the 2005 DSE Practice Note heading "what level of assessment is required" and its Table 2 Assessment Matrix, an "Assessment" is required if insufficient information is available to determine if an audit is appropriate.
3. Firstly, this Table 2 makes it clear that with a combination of Underground Storage Tanks and dwellings, an Environmental Audit is unarguably required because the potential for contamination falls within Category A of Table 2.
4. Secondly, this Table 2 requires an assessment only where the potential for contamination falls within Category B (Medium). But this case already falls within Category A.
5. So any way one look at this 2005 Practice Note, I cannot see any need for such an Assessment in addition to the Certificate/Statement.
6. The "other circumstances" that the Practice Note 2005 refers to, appears to refer to situations that may or may not require the imposition of an Certificate or Statement of Audit. This case is the opposite.

1. If a Statement or Certificate of Environmental Audit is not obtainable, after planning permission is given, then the use, works or construction can simply not commence.
2. I do not say an Assessment could never be required, but it would have to be an extraordinary circumstance to require it. Other than council's blanket justification expressed in paragraph 19 above, it has not presented me with any facts peculiar to this permit application, to justify this level of further information prior to it making a decision incorporating a permit condition requiring a Statement or Certificate of Environmental Audit prior to commencement of development/construction.
3. In my opinion the responsible authority has put the cart before the horse. According to the facts of this case, the responsible authority can make a decision on this planning application for twenty-two dwellings without a comprehensive environmental site assessment plus undertaking to fund a third party report. I would be prepared to make the declaration sought under s.149A, but think s.78(b) is the preferable procedure. Instead, I ask the responsible authority to make its decision on this planning permit application without such an Assessment provided by the permit applicant.

[1] Review against a further information request

[2] By extension of time dated 15 March 2005

[4] Minister's Direction No. 1 introduced 9 October 1989 and last amended 27 September 2001.